My new client is criminally charged with breaking into the home of someone I represented years ago in unrelated matters. Does Rule 1.9 bar me from defending the criminal case?

Plain-English summary

The inquiring attorney currently represented a client criminally charged with breaking into the home of the attorney's former client. The attorney had represented the former client approximately 10 to 12 years earlier for a closing and about five years earlier in a civil suit, and had had no contact with the former client in the last five years. The current client, informed of the prior representation of the complaining witness, consented to the attorney's continued representation. The attorney asked whether Rule 1.9 prohibited representing the client in the breaking-and-entering charge.

The Panel set out Rule 1.9 ("Conflict of Interest: Former Client"), under which a lawyer may not represent another person in the same or a substantially related matter materially adverse to a former client absent consent, and may not use information relating to the prior representation to the former client's disadvantage.

Applying Rule 1.9, the Panel opined that representing the client in the criminal matter is not the same or substantially related matter in which the client's interests are materially adverse to the former client's interests. It concluded that the inquiring attorney may represent the criminal defendant without violating Rule 1.9, so long as he or she does not use derivative information against the former client.

Currency note

This opinion was issued in 1994 (Opinion 94-69, issued September 28, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.9 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 1.9. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can I defend a client accused of breaking into a former client's home?

A: The Panel concluded yes. The criminal charge is not substantially related to the earlier unrelated representations of the former client, so Rule 1.9 does not bar the representation.

Q: What condition did the Panel attach?

A: The attorney may proceed so long as he or she does not use derivative information gained from the prior representation against the former client, consistent with Rule 1.9(b).

Q: Does the passage of time matter?

A: The Panel noted the prior representations occurred 10 to 12 years and five years earlier with no recent contact, and found the current criminal matter unrelated to them.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.9 (conflict of interest: former client), the analog of Model Rule 1.9. Rule 1.9(a) turns on whether the new matter is the same or substantially related to the prior representation and materially adverse to the former client; Rule 1.9(b) restricts using prior-representation information. The Panel found no substantial relationship between a real-estate closing and civil suit and a later criminal charge.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / RI RPC 1.9(a), (b) (conflict of interest: former client; substantial-relationship test and information-use limits)

See also

• RI EAP Opinion 94-55: no suing a former divorce client under Rule 1.9
• RI EAP Opinion 94-53: no continuing duty to a former client's minor child under Rule 1.9

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2094-69.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
OPINION #94-69 REQUEST #540
Issued September 28, 1994

An attorney currently represents a client who is criminally charged with breaking into the attorney's former client's home. The attorney represented the former client approximately 10-12 years ago for a closing and five years ago in a civil suit. The attorney has had no contact with the former client in the last five years. The inquiring attorney informed the current client of his prior representation of the complaining witness and he/she consents to his/her continued representation. The inquiring attorney asks if Rule 1.9, "Conflict of Interest: Former Client" prohibits him/her from representing the client in the breaking and entering charge.

Rule 1.9, "Conflict of Interest: Former Client" states the following: A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or

(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known.

The Panel does not believe that representing the client for a criminal matter is the same or substantially related matter in which that person's interests are materially adverse to the interests of the former clients. Therefore, the inquiring attorney may represent the criminal defendant without violating Rule 1.9 so long as he/she does not use derivative information against his/her former client.